School Swimming Pool Drowning Law

Unfortunately, it often takes a tragedy to put in place commonsense laws that should have been present all along. In the area of school swimming pool drowning law, a significant change in California law was adopted in October 2021 to require the presence of an adult certified in cardiopulmonary resuscitation (CPR) for any school campus event sponsored or hosted by a school district or charter school if the event is to be held in or around a swimming pool. Awareness of all applicable laws — both in the general area of premises liability as applying to drowning incidents, as well as more specifically to school and public entity liability for drownings that occur in school swimming pools — is a crucial skill than an experienced personal injury lawyer will bring to dealing with these tragic circumstances.

According to the U.S. Centers for Disease Control (CDC), drownings:

• Are the #2 leading cause of death for children aged 1-4 (behind birth defects);
• Are the #2 leading cause of death for children aged 1-14 (behind traffic accidents);
• Cause an average of about 11 deaths per day;
• Cause an average of about 22 non-fatal drownings per day (which can result in severe and permanent damage);
• Occur mostly in swimming pools for victims under the age of 15 (in older victims, drowning is more likely in the natural waters of oceans, rivers, and lakes);
• Are commonly associated with a lack of supervision when occurring with children.

Understandably, most swimming pool drownings occur during the warm weather months. A study by the Consumer Products Safety Commission (CPSC) for two recent summers found that 163 children under age 15 died from pool drownings between Memorial Day and Labor Day in 2017 following 205 fatal drownings during the same time the prior year. The same study noted that the U.S. states with the four highest totals of fatal drownings of children in pools were the hot summer weather states of Florida, California, Texas, and Arizona.

In June of 2016 (a summer month), in the “sunbelt” city of Murrietta, California, a 13-year-old boy named Alex attended an after-school, end-of-year swimming pool party for his school band. The event was sponsored by the school band’s booster club, held at the school’s swimming pool. Grim video captured Alex’s attempts to stay above water and wave, while the faculty and student lifeguards in attendance did nothing. Eventually, Alex was found unresponsive by his fellow students swimming nearby. They brought him to the surface and eventually to the side of the pool — all while the lifeguards did nothing. Alex was taken to a local hospital, where it was discovered that he had sustained irreversible brain damage due to the extended time he was without oxygen. He passed away after being taken off life support.

When questioned about the inaction displayed by himself and by the student lifeguards he had trained and chosen for the event, the head lifeguard claimed that because it did not occur during formal activity such as an athletic event, he believed that his insurance would not cover him for liability if he “got involved.” This head lifeguard was the school’s head coach for the swimming and diving teams and was certified as both a lifeguard and a lifeguard instructor.

This terrible loss of a boy’s life may have resulted from an incorrect misinterpretation by this coach and lifeguard. To make a school district and staff’s responsibility more plainly clear, however, the California legislature passed Senate Bill 722 in 2021 to modify the language of California Education Code section 35179.6(b)(2), which now states that a public school or charter school hosting an event in or around a swimming pool that is not part of a school athletic program, must nevertheless have at least one adult with a valid CPR certification present for the entire duration of the event.

Claims and lawsuits that arise from school swimming pool drownings – both fatal and non-fatal – can be very complex because of the several special areas of law and legal doctrines that are likely to apply. These are typically public entity claims and lawsuits, with the additional (and different) claim filing requirements and statute of limitation timing applicable to government claims cases. Additionally, these cases will often include claims that the participants accepted the risks of the activity — either explicitly, such as by way of the ubiquitous “participation release” forms that parents may be required to sign, or implicitly because “that sport is just inherently dangerous.” It’s essential, however, not to lose sight of the fundamental duty of care that schools and their employees owe toward the children who have been entrusted to their care.

Among the legal considerations often argued in these cases are:

• The primaryassumption of the risk is a legal doctrine that places primary responsibility for an injury arising from particular, inherently dangerous activities upon the individual who chooses to participate. This doctrine is often asserted by defendants — such as school districts and staff — when an injury results from activities like sports. However, the critical qualifier is “inherently dangerous,” meaning that the injury sustained is an inherent part of the sport. The possibility of suffering a broken finger during a high school football game is likely an inherent danger in playing tackle football. However, a fatal drowning is undoubtedly not a danger commonly associated with attending an after-school party.
• Duty of supervision — a school district and its staff have a fundamental duty to properly supervise the children who have been given over to their care. This duty exists independently of any (potential) assumption of risk by the student or their family and any (potential) negligence on either the student or anyone else who may have contributed to the injury. An essential part of this duty is to supervise the students in recognition that they may not make the best decisions for themselves at all times.
• Increasing the inherent risks — swimming coaches and other instructors for recreational sports have an obligation not to increase the risks above what is typically present in the activity. Encouraging students to participate without proper safety equipment, such as doing something that significantly and unreasonably increases the likelihood of injury, would increase the risk inherent in the sport. Selecting and training student lifeguards who are unable or unwilling to recognize a possible drowning incident and act quickly and appropriately certainly increases the risk posed by a swimming sports event or an after-school swim party.
• Good Samaritan Law — California law does not impose a responsibility on the general public to assist or rescue a person in danger or who has been injured. We can’t be held legally liable in such an instance for not acting. But we certainly do recognize that it’s usually a good idea to help out — to try to assist those in danger or who have been hurt, especially when professional emergency responders are not immediately available to assist. California and other states have enacted so-called “Good Samaritan” laws to address this situation. California’s law states that someone who provides assistance at the scene of an emergency cannot be held liable for any act or omission so long as they acted in good faith, did not expect to be paid for their deeds, and were not grossly negligent in their actions. However, the Good Samaritan doctrine does not apply when there is a special relationship between the parties that places a duty on one party to act in certain ways. A school employee has a duty to supervise students under their care. An employee-lifeguard of a school district has a duty to prevent injuries and provide assistance when an injury has occurred.

View this video that describes one Australian school’s program for teaching swimming and water safety to children, one of the best ways to reduce drowning risk:

Hello, my name is Ed Smith, and I’m a Sacramento Swimming Pool Accident Lawyer. School swimming pool drownings are always tragic incidents, especially because the victims are usually young children, but also because these incidents are almost always preventable. Proving that a school district and its employees failed in their fundamental duty of care toward the children they supervise is typically complicated, both factually and as a matter of law. An experienced personal injury attorney can be a key resource for victims and families seeking compensation for these terrible events. If you or a loved one have been injured due to a school swimming pool accident, please contact us for free, friendly advice at (916) 921-6400 or (800) 404-5400, or reach out to us via our online contact form.

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Photo by Nichole Bohner from Pixabay

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